Citation Nr: 0012021
Decision Date: 05/08/00 Archive Date: 05/18/00
DOCKET NO. 96-24 050 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Entitlement to service connection for nonservice-connected
pension benefits.
REPRESENTATION
Appellant represented by: Virginia Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. J. Vecchiollo, Counsel
INTRODUCTION
The veteran served on active duty from August 1972 to August
1975.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a September 1994 rating decision from
the Roanoke, Virginia, Department of Veterans Affairs (VA)
Regional Office (RO).
FINDING OF FACT
The veteran's disabilities preclude him from maintaining
substantially gainful employment consistent with his age,
education and occupational experience.
CONCLUSION OF LAW
The requirements for a permanent and total rating for pension
purposes have been met. 38 U.S.C.A. §§ 1502, 1521, 5107
(West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.342 and Part 4
(1999).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran's claim for nonservice-connected pension benefits
is well-grounded because there is evidence of honorable
active military service of 90 days or more during a period of
war; permanent and total disability productive of
unemployability; and income that does not exceed the
statutory limit. See Vargas-Gonzalez v. West, 12 Vet. App.
321, 328 (1999); see also 38 U.S.C. § 1521; 38 C.F.R. § 3.3.
No further assistance to the veteran is required to comply
with the duty to assist mandated by 38 U.S.C.A. § 5107(a).
The veteran was born in October 1951. He asserts that he
last worked in 1993. He reports having a 12th grade
education, and that he had employment experience as a
cashier, security guard and janitor. The veteran claims that
he is unable to secure or maintain substantially gainful
employment due primarily to his nonservice-connected mental
disorders.
A review of the records shows that the veteran served on
active duty from August 1972 to August 1975. The veteran's
service records reveal that he received an administrative
discharge under honorable conditions due to a personality
disorder and by reason of unsuitability.
In June 1976, service connection was granted for pilonidal
cyst, recurrent, chronic, which was assigned a non-
compensable rating and eventually was raised to the 10
percent level in a September 1994 rating decision.
The veteran was suspended from a community college in
December 1983 due to an unsatisfactory grade point average.
In December 1993, the veteran applied for VA nonservice-
connected pension benefits.
In support of his claim, VA outpatient treatment reports
dated from 1993 to 1994 were received. During that period of
time, the veteran was treated at the Mental Heath Clinic.
The record reflects that the veteran related that he had
molested his brother in the past. The examiner noted that
the veteran's inappropriate social skills were a contributing
factor to his inappropriate sexual behavior. In April 1993,
the veteran was diagnosed with dysthymia. It was noted that
he had a desire to molest children, which he had been able to
ignore. In May 1993, the veteran reported an inappropriate
and detailed sexual dream involving himself and a 5 year old
girl. In July 1993, the veteran reported that he was able to
control his inappropriate urges. In September 1993, he was
diagnosed with pedophilia. At that time, the veteran
reported his continued inappropriate sexual fantasies about
young children. The examiner discussed the possibility of
the veteran being employed in a job involving physical labor
since the veteran reported making mental errors which would
prevent more sedentary employment. The veteran reacted
negatively to this suggestion. In January 1994, he again
reported having inappropriate sexual fantasies about young
children.
The veteran had been deemed totally disabled by the Social
Security Administration (SSA) as of June 1993. The finding
of total disability was based on medical records which
supported the veteran's complaints of an affective mental
disorder and a personality disorder. The SSA Administrative
Law Judge found that the veteran's mental disorders caused
moderate restriction of daily living, and moderate difficulty
in maintaining social functioning. In addition, it was found
that the veteran often had deficiencies of concentration,
persistence or pace resulting in failure to complete tasks in
a timely manner, and had repeated episodes of deterioration
or decompensation in work or work-like settings which caused
him to withdraw or to experience exacerbation of his
symptoms.
A VA general medical examination was conducted in June 1994.
The veteran was diagnosed with status post surgery for
recurrent pilonidal cyst with perianal dermatitis, fungal
infection of the buttocks and severe obesity.
A VA psychiatric examination was conducted in June 1994. The
diagnosis was dysthymia; pedophilia, by history; and
personality disorder, with narcissistic and dependent
features. The examiner opined that the veteran's overall
adjustment was very poor and that he would need social
support probably for the rest of his life.
In a letter from the Richmond, Virginia, Goodwill Industries,
dated in August 1994, it was noted that the veteran was
employed with that organization's extended employment program
for the disabled and that he had remained in the program
because to his inability to follow a routine or instructions
due to extreme memory loss.
As judicially interpreted, the pertinent law and regulations
provide for two methods by which permanent and total
disability can be established: either (1) the veteran must
suffer from a lifetime disability which would render it
impossible for the average person to follow a substantially
gainful occupation (an "objective" standard), as specified
in 38 C.F.R. § 4.15, or (2) he must be unemployable as a
result of lifetime disability (a "subjective" standard
based on the veteran's individual work experience, training
and disabilities), found in 38 C.F.R. §§ 3.321(b)(2), 4.16,
and 4.17. Brown v. Derwinski, 2 Vet. App. 444 (1992); Talley
v. Derwinski, 2 Vet. App. 282 (1992).
In making such a determination, age, education, employment
history and physical and mental disabilities are taken into
account. 38 U.S.C.A. §§ 1502, 1521; 38 C.F.R. §§ 3.321,
3.340, 3.342, 4.15, 4.17.
For pension purposes, when the percentage requirements are
met under 38 C.F.R. § 4.16, and the disabilities involved are
of a permanent nature, a rating of permanent and total
disability will be assigned if the veteran is found to be
unable to secure and follow substantially gainful employment
by reason of such disability. 38 C.F.R. § 4.17. To meet the
percentage requirements at 38 C.F.R. § 4.16, the veteran must
suffer from one disability ratable at 60 percent or more, or
two or more disabilities where one of the disabilities is
ratable at 40 percent or more, and the combined rating of all
disabilities is 70 percent or more. Pension is payable to a
veteran with the requisite service who is unemployable as a
result of disability "reasonably certain" to last throughout
the lifetime of the disabled person. Talley v. Derwinski, 2
Vet. App. 282, 285 (1992); 38 U.S.C.A. § 1502(a).
The veteran is service-connected for a postoperative
pilonidal cyst which is rated 10 percent disabling. The
veteran's nonservice-connected disabilities include
dysthymia, currently evaluated as 30 percent disabling, and a
personality disorder rated 10 percent disabling. The veteran
has a combined disability rating of 40 percent.
The Board has determined that the ratings currently assigned
for the veteran's disabilities, are proper. Accordingly, on
the basis of the objective "average person" standard of
review, a permanent and total disability evaluation is not
warranted. Further, such combined rating does not meet the
minimum percentage requirements for total disability under 38
C.F.R. § 4.16 (and even assuming, without conceding, that
each of the veteran's nonservice-connected disabilities is
permanent in accordance with 38 C.F.R. § 4.17), the veteran's
disabilities are objectively determined not to be
representative of total disability in accordance with 38
C.F.R. §§ 4.16 and 4.17.
Since the veteran's disabilities do not meet the threshold
requirements of 38 C.F.R. § 4.17, as applied to pension cases
through 38 C.F.R. § 4.16, the Board must further determine
whether the veteran would be eligible for pension benefits on
the basis of subjective criteria, see Brown v. Derwinski, 2
Vet. App. 444 (1992), including consideration of a claimant's
age, education and occupational history, and unusual physical
and mental defects. Such subjective standard mandate of
38 U.S.C.A. § 1521(a) is created by 38 C.F.R. § 4.17 and §
3.321(b)(2) being read together. See Talley, supra.
With respect to the subjective factors bearing on the
veteran's possible entitlement to pension benefits, such as
age, education and occupational background, the Board notes
that the veteran was born in 1951, has a high school
education, worked as a cashier, security guard and janitor,
and is in receipt of Social Security disability benefits, due
to his nonservice-connected mental disorders. It appears
that the veteran's mental disorders impede his work
performance in that he has extensive memory loss and poor
overall adjustment to a work setting. In addition, in
viewing the veteran's mental health records, it is clear that
any employment which would put the veteran in contact with
children would be inappropriate and possibly dangerous given
post-service diagnoses of pedophilia and the veteran's own
reports of inappropriate sexual fantasies involving children.
Given that the aforementioned factors, the Board finds that
the veteran's disabilities, in particular, his psychiatric
disorders, when considered in light of his education, work
experience, and age, render him unable to secure and follow a
substantially gainful occupation. It is clear that the
veteran should remain in treatment for his psychiatric
disorders and that he may pose a hazard to young children.
Therefore, the Board concludes that nonservice-connected
pension benefits are warranted based on the aforementioned
subjective criteria. The benefit of the doubt is resolved in
the veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. §§
3.321(b)(2), 4.17.
ORDER
Entitlement to a permanent and total disability rating for
pension purposes is granted.
J. CONNOLLY JEVTICH
Acting Member, Board of Veterans' Appeals